Antitrust chair says Congress will need the people’s help to rein in powerful Big Tech companies

Rep. David Cicilline (D-RI) says passing antitrust regulation to rein in companies like Amazon, Apple, Facebook, and Google is going to be tough. He believes Congress will need the American people’s help to enact any meaningful reforms. Cicilline is chair of the antitrust subcommittee in Congress and spoke Sunday at a Yale University School of Law conference on antitrust and Big Tech.

His remarks precede the anticipated release of what Cicilline calls the most extensive antitrust law reform investigation by Congress in over 50 years. Identifying anticompetitive behavior by big companies is pretty easy, he said, but developing solutions and gathering the political support needed for reform is a challenge.

“We’re going to have to combat companies that have an enormous stake in maintaining the status quo, which has been enormously profitable for them, and so this will be a big fight,” he said. “We’re going to need the support of the American people when we move forward with this legislation. It will only happen if we can rally the country around it because we’re fighting against strong economic forces and powerful corporations that are likely to oppose what we’re trying to do. And getting the American people on our side to understand it matters in their daily lives is going to be really critical.”

Cicilline said it’s important for the American people to understand that the rise of Big Tech companies has resulted in declines in innovation, trustworthy news sources, consumer choices, quality, and worker power, along with increased costs for consumers. He has also called the power of Big Tech companies a threat to democracy.

In June 2019, the antitrust subcommittee, which is part of the House Judiciary Committee, launched an investigation into the impact of Amazon, Apple, Facebook, and Google on digital markets. That report was expected to be released in the coming days, but multiple news outlets say the release has been delayed. A Republican member of the subcommittee told Bloomberg the report will recommend that Congress break up the Big Tech companies. A Democratic source told CNBC the report was delayed for additional Republican feedback and after a whistleblower came forward to share information about Facebook’s 2012 acquisition of Instagram. The New York Times reported Tuesday morning that the report was delayed due to a lack of Republican support and splits along party lines.

In all, the subcommittee held seven hearings, collected 1.3 million internal documents and communications, and heard from dozens of witnesses and experts. Cicilline said the subcommittee report will give Congress “a menu of options” for how to reform antitrust law in the coming months and years.

A Department of Justice (DOJ) investigation into Google is also expected out this week, according to Politico.

In a conversation with Yale economics professor Fiona Scott Morton on Sunday, Cicilline talked about the kinds of antitrust solutions he thinks would be politically feasible and effective. On the list: data portability, enacting separations of power that prevent the owner of a platform from favoring their own products over others, and giving federal agencies that enforce antitrust law — like the Federal Trade Commission (FTC) — resources for more robust enforcement.

In reaction to steel and railroad trusts of the late 19^th century and subsequent monopolies, federal agencies like the FTC and the DOJ gained a reputation for bringing antitrust cases against monopolies. Notable examples in tech include IBM in the 1970s and Microsoft in the 1990s. Recent decades have seen few examples of major antitrust enforcement actions in any industry. One of the last large cases came to an end when the DOJ settled with Microsoft in 2001. Ironically, experts testifying before Congress said reduction in Microsoft’s anticompetitive behavior at that time enabled the rise of Amazon, Facebook, and Google.

Cicilline believes antitrust statutes must be modernized to respond to a series of “very bad court decisions.”

“We [Congress] get to set competition policy, and the court has on its own out of whole cloth made determinations that are inconsistent with congressional intent. And we have to correct that — that’s on us to do,” he said.

At the antitrust subcommittee’s final hearing last week, one of the topics was a series of court rulings that made it successively harder to block mergers. Facebook’s acquisition of Instagram and WhatsApp and Google’s acquisition of AdMob and DoubleClick were cited as examples. In the hearing, Cicilline suggested Congress may need to pass a law to address an overreach by courts, while Rep. Ken Buck (R-CO) called for greater resources for the DOJ and FTC. Buck added that when determining whether a merger is anticompetitive, the burden of proof should be shifted from regulators to companies, a solution that came up in previous testimony before the subcommittee.

The subcommittee’s lengthy investigation, Cicilline said, also uncovered evidence of Congress’ shortcomings. He said it’s clear that antitrust law, much of it dating back to the Sherman Antitrust Act of 1890, is in need of reform. But he also stressed that a congressional mandate to ensure agencies enforce antitrust law has fallen short.

“Resources means money, but it also means that they are sufficiently led by people who are sufficiently enthusiastic and creative to use all the tools available to provide robust antitrust enforcement,” he said.

Political pollsters predict Democrats will win a majority of seats in the House of Representatives and a potential majority in the Senate in the November 3 general election. Although results are far from certain, a Democrats win in both houses of Congress and the presidency could have major implications for tech policy.

Updated 6:55 a.m. October 6 with additional information about why the release of the antitrust report was delayed.